The Etan Patz murder trial was unusual to begin with – taking place in a New York courtroom 36 years after the six-year-old boy’s disappearance, without a body having been found, and with a suspect who waited three decades to confess to investigators.
Then there was the “rival suspect” – a convicted child molester now serving time in a Pennsylvania prison. Then the jury became deadlocked – not once, but twice. Now there is the long silence as the 12 grind through an almost unheard of 17th day of deliberations in their windowless jury room on the instructions of the judge. The trial began on 30 January.
Legal experts are not only incredulous that the jury is still being urged to try to agree on a verdict, they are increasingly dismayed.
“There are multiple risks. You worry that jurors who have one opinion are going to give in to the others out of convenience or sheer exhaustion,” Peter Mitchell, an attorney at the criminal defense practice of the Legal Aid Society in New York, said.
“And if they bring back a guilty verdict, I would be worried if I were the prosecution that an appellate court is going to simply reverse that in short order,” he said.
Pedro Hernandez, 54, a disabled factory worker from Maple Shade, New Jersey, is on trial for the kidnapping and murder of six-year-old Etan, who vanished on 25 May 1979, while walking from his parents’ apartment in the Manhattan neighborhood of Soho to a school bus stop just two blocks away. The disappearance stunned New York and made parents reassess their children’s safety in the city’s streets.
In 2012, years after the case had gone cold and investigators had given up on a completely different prime suspect, Hernandez confessed to luring Etan into the small convenience store where he worked, close to the bus stop, with the offer of a soda, and strangling him in the basement.
The prosecution argues that Hernandez’s confession, and the many times, it turned out, that he had admitted various aspects of the crime to those around him over the years, is proof enough, despite the absence of any eyewitnesses or physical evidence.
Hernandez said he stuffed Etan’s body into a box and left it with the trash. Neither the body nor any of the boy’s clothes have ever been found.
The defense maintains that Hernandez is disturbed and deluded and made up his confession, the real culprit being Jose Ramos, the convicted and imprisoned child molester who had long been considered the prime suspect.
The jury can’t decide. After beginning deliberations on 15 April, they told the presiding Justice Maxwell Wiley, at the state supreme court, on 29 April that they could not reach a verdict. He told them to continue deliberating but, on 5 May, they announced once again that they could not agree. He told them to continue deliberating.
“When there is a case that has so many open questions, about a crime that happened so long ago, then a hung jury is quite likely and I predicted it would happen in this trial,” said Mitchell.
Professor James Cohen, an associate professor at the Fordham University School of Law in New York, said it was a very strange case.
“I think the judge is pushing the envelope by sending the jury to deliberate further at this point. The jurors may not be aware that they have the power to go back to the judge a third time and tell him they can’t agree, that’s really dangerous, someone could compromise in a fundamental way about something that they do not believe in,” he said.
He said he had not seen anything that suggested the judge had made up his own mind about what the right verdict should be, rather that judges do not like declaring a mistrial if the jury cannot agree, because it is such a waste of time.
Cohen said the case was strange because “in a way you have competing suspects”, in Hernandez and Ramos, with strong arguments for each but also the kind of gaps – mainly in the lack of physical evidence – that sow doubt in jurors’ minds.
Cohen and Mitchell both guess there must be more than one “holdout” on the jury who does not agree with the majority about the verdict. Either a block on each side, or at least two or three who will not be swayed by the majority.
A lone holdout would almost certainly have been talked around by the others by now, Cohen said.
He pointed out that while some jurisdictions allow juries to reach a majority verdict, New York juries must reach a unanimous decision in criminal trials.
If the jury comes back a third time to say it cannot reach a verdict then the judge will almost certainly declare a mistrial. It will then be up to the prosecution to decide if they want to retry the case.
Marshall Hennington, the founder of New York-based trial and jury consultancy Hennington & Associates and a clinical psychologist, said he was not so much surprised at the jury being deadlocked twice as at the judge sending them to continue their discussions after they had already been deliberating for an unusually long time.
He said the judge was “teetering on the brink of coercion” by ordering the jury to deliberate for a third time after so many days.
“Does the judge respect their decision? There are some legal issues here and the judge runs the risk of being seen as biased. If they do not have enough evidence to decide beyond reasonable doubt then he may be considered to be forcing their hand,” said Hennington.
But he pointed out that ruling a case a mistrial is tantamount to saying the jurors did not fulfill their obligation to make a decision one way or the other.
“My heart goes out to the family of Etan. It’s extremely painful for a family to have to relive what happened to their son,” he said.
He called a 17-day deliberation, over the course of almost month, very unusual.
“If they do not do justice this time around, it would be a shame,” he said.
